Douglas Silas outlines the legal duties relating to mainstream provision for pupils with SEN
There is a general requirement under the law for local authorities (LAs) to provide a mainstream education to children and young people with SEN.
Mainstream schools (that is maintained schools, academies that are not special schools, maintained nursery schools, 16 to 19 academies, alternative provision academies, and PRUs) must:
- use their best endeavours to make sure that a child or young person with SEN gets the support they need
- ensure children and young people with SEN engage in the activities of the school, alongside pupils who do not have SEN
- designate a teacher, for example the SENCO, to be responsible for coordinating SEN provision (this does not apply to 16 to 19 academies)
- inform parents when they are making special educational provision (SEP) for a child or young person
- prepare an SEN information report.
The provision of an SEN information report requires a school to set out their arrangements for admitting children with disabilities and SEN and the steps being taken to prevent them from being treated less favourably than others. This should include the facilities provided to enable access to the school for disabled children and their accessibility plan showing how they plan to improve access progressively over time. This is often referred to as mainstream “inclusion”.
What does inclusion involve?
Schools must follow general duties under the law to promote disability equality, as set out in the Equality Act 2010 (previously in the Disability Discrimination Act 1995). This covers their duties towards individual disabled children and young people which mean that they must make reasonable adjustments, including the provision of auxiliary (supplementary) aids and services for children and young people with disabilities and SEN, to prevent them being put at a substantial disadvantage.
What are reasonable adjustments?
The Equality and Human Rights Commission (EHRC) states in its guidance that there are many reasonable adjustments that schools are already making for disabled pupils (such as the use of auxiliary aids, like coloured overlays for dyslexic pupils, pen grips, adapted PE equipment, adapted keyboards and computer software). They also point out that many reasonable adjustments are inexpensive and will often just involve a change in practice, rather than the provision of expensive pieces of equipment or additional staff. The EHRC adds that the duty to make reasonable adjustments requires a school to take positive steps to ensure disabled pupils can fully participate and enjoy the other benefits, facilities and services that the school provides for other pupils. It is also an anticipatory one owed to pupils with SEN and disabilities generally, so schools need to think in advance about what pupils might require and what adjustments might need to be made for them.
What about EHC plans?
As I discussed in the last issue of SEN Magazine (SEN104, Jan/Feb 2020), the SEN and Disabilities Code of Practice (CoP) states that if a child’s parent or a young person makes a request for a particular nursery, school or post-16 institution – that is, maintained nursery schools, maintained schools, any form of academy, free school, non-maintained special schools, further education, sixth form colleges, independent schools or independent specialist colleges (which have been approved by the Secretary of State) – the LA must comply with that preference and name the school or college in the child’s education, health and care (EHC) plan, unless:
- it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
- the attendance of the child or young person there would be incompatible with the efficient education of others or the efficient use of resources.
Where such a placement is named on an EHC plan, the placement must admit the child or young person.
The child’s parents or the young person may also request a place at a non-maintained early years provision, independent school, specialist college or post-16 provider (who are not referred to above). If this happens, the LA need only “consider” their request. This means that the LA is then not under the same conditional legal duty to name it.
If a parent or young person does not make a request for a particular placement, or does so and the request is not met, the LA must then specify mainstream provision in the EHC plan unless it would be:
- against the wishes of the parent or the young person, or
- incompatible with the efficient education of others.
Also, if the LA considers a particular mainstream place to be incompatible with the efficient education of others, it must show that there are no “reasonable steps” that a mainstream nursery, school, or post-16 institution in its areas could take to prevent incompatibility.
What are “reasonable steps”?
The CoP states that what constitutes a reasonable step will depend on all the circumstances of the individual case and may include factors such as:
- whether taking the step would be effective in removing the incompatibility
- the extent to which it is practical to take the step
- the extent to which steps have already been taken in relation to a particular child or young person and their effectiveness
- the financial and other resource implications of taking the step
- the extent of any disruption that taking the step would cause.
The CoP gives many examples of “reasonable steps” but also says that there may be reasons why it may not always be possible to take reasonable steps to prevent a mainstream place from being incompatible with the efficient education of others. It adds that a decision not to educate a child or young person in a mainstream setting against the wishes of the child’s parent or the young person should not be taken lightly.
So, overall, there is quite a strong legal right to mainstream education for children and young people with SEN.
About the author
Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors.
Twitter : @douglassilas